LAWYER DELAYS PLEA OF GUILTY FOR CLIENT UNTIL HAZE OVER POT POSSESSION
CLEARS

Just one day after a Windsor judge tossed out a marijuana charge on a
technicality, a city lawyer yesterday delayed a client's guilty plea until
the legal haze over pot possession clears.

As the federal government announced it would appeal Thursday's Ontario Court
of Justice ruling that the law prohibiting marijuana possession is invalid,
Peterborough lawyer Bob Burgis was in court asking Mr. Justice L.T.G.
Collins to adjourn the marijuana case of a 19-year-old man until Jan. 24.

"I haven't read the Windsor case yet and I don't know what is going to
happen with it," Burgis told The Examiner. "It's just not right to plead a
guy guilty if you're not sure if the law is going to be upheld."

Mr. Justice Douglas Phillips's Thursday ruling in a Windsor court, sided
with a 16-year-old boy's lawyer, Brian McAllister, who argued the law that
makes possession of marijuana a criminal offence is effectively invalid.

The federal Justice Department "expedited" its appeal of Phillips's ruling
to quell the uncertainty over Canada's drug laws, a spokesman said.

"We were aware of the uncertainty the decision created so we thought we'd
move as quickly as possible," Jim Leising said yesterday.

McAllister was served yesterday with the government's intention to appeal,
Leising said.

The case is likely to be heard in Superior Court of Justice in Windsor
within the next 30 days, he added.

Despite the ruling, the Controlled Drugs and Substances Act is still the law
in Canada, Leising said, and police will proceed as usual with laying
charges.

Peterborough's federal drug prosecutor Robert Beninger told The Examiner he
had been instructed by the Justice Department to adjourn all similar cases
=AD those involving possession of 30 grams of marijuana or less =AD until
the higher court rules on the appeal.

Leising dismissed the suggestion the pursuit of of drug offences involving
marijuana is on hold in Canada.

"We haven't given any direction to police to not continue to enforce the
law," he said. "What we've put on hold is proceeding with trials where
people want to rely on the same defence raised by (McAllister). Hopefully,
by prosecutors agreeing to adjournments, nobody will be jeopardized by the
uncertainty."

Because defence lawyers will likely cite Phillips's ruling in all simple
possession cases involving pot, Beninger said it makes sense to wait for the
appeal decision.

"It makes no sense to have a whole number of similar matters heading up to
the appeal courts at the same time. There's going one case going there. They
might as well make a decision on that one and have it apply to everything
else," Beninger said.

McAllister said he's received many e-mails and calls from other lawyers who
want to use the same invalid-law argument to defend clients.

"It's getting to the point where we'd all be well served to just have
everything held in abeyance until the appeal is heard," McAllister said.

"Once the appeal court hears this case, at that point it will have
wide-ranging implications, at least in Ontario."

The legal loophole emerged two years ago when Terry Parker, an epileptic who
uses marijuana to ease his symptoms, won the right to possess marijuana in a
landmark decision from the Ontario Court of Appeal.

Ottawa's response to the Parker ruling was to introduce the Medical
Marijuana Access Regulations, which are supposed to allow qualified
applicants to use marijuana for medical reasons.

But McAllister successfully argued that rather than using regulations to
close the loophole and allow marijuana's medicinal use, the government ought
to have instead drafted a whole new statute.